Lit1 Task 2

LIT 1 Task 2 1
Situation A
Relevant Facts of Situation A: * Employee A has been with Company X for two years. * Employee A's spouse gave birth prematurely to twins. He requested leave to be with his spouse, which was granted. * Employee A has been on leave for 11 weeks, and has asked to return to work, and to be paid the withheld salary from his 11-week leave. * Manager has agreed to Employee A’s return to the previous job, at the previous rate of pay. * The manager has denied the request for the 11 weeks of withheld salary.
How does the FMLA act of 1993 apply?
The FMLA Act of 1993 applies to all public agencies, including state, local and federal employers, local education agencies (schools), and private-sector employers who employed 50 or more employees in 20 or more workweeks in the current or preceding calendar year.
The FMLA entitles eligible employees to take up to 12 work weeks of unpaid, job protected, leave in a 12 month period for specified family and medical reasons. Title 1, sec 102, subsection 1(a) of this act specifies that the birth of a son or daughter of the employee is an eligible reason for the leave. Therefore, as long as the employee is eligible for the leave he is entitled for the time off.
The FMLA Act of 1993 has set forth guidelines for the determination of eligibility for the employee to be eligible to the FMLA benefits. The guidelines state: “To be eligible for FMLA benefits an employee must work for a covered employer; have worked at least 1,250 hours over the previous 12 months; and work at a location in the United States or in any territory or possession of the United States where at least 50 employees are employed by the employer within 75 miles” (United States Department of Labor, 1993).
The Act also allows employees and/or may choose to substitute any or all accrued paid leave such as sick or vacation hours to cover all or some of the leave. The ability to use this time is determined by the terms and conditions of the employer’s leave policy.
Under the guidelines of the FMLA it is stated that upon return from FMLA leave, an employee must be returned to the employee’s original job, or to an equivalent job with equivalent pay, benefits, and other terms and conditions of employment. An employee’s use of FMLA leave cannot result in the loss of any employment benefit that the employee earned or was entitled to 2

before using FMLA leave, and it cannot be counted against the employee under a “no fault” attendance policy.
How does The FMLA Act of 1993 effect situation A:
In situation A, there are no violations. Employee A was granted the medical leave he was entitled to take due to the birth of a child/children. He was eligible to take 12 weeks; however, he only took 11 weeks off. When he returned to work, employee A was returned to his previous job, and his previous rate of pay. The employee requested 11 weeks of salary that was withheld and was denied this request. The only way that he should have been paid is if he had any sick or vacation time accrued that could have been applied to his time off, if company X’s leave policy allowed for this. Therefore, Company X fully complied with regulations of the Family Medical Leave Act of 1993.
Situation B
Relevant Facts of Situation B: * Employee B is 68 years old and has been with Company X for 42 years. * During the annual performance review last month, it was determined that Employee B was doing “above average” work. * Employee B was denied a promotion due to age. * A co-worker given the promotion. * The co-worker is 32 years old. * During the co-workers annual performance review, the worker was doing “adequate” work.
How does the ADEA Act of 1967 apply?
The Age Discrimination in Employment Act of 1967 protects individuals who are 40 years of age or older from employment discrimination based on age. The ADEA’s protections apply to both employees and job applicants. Under the ADEA, it is unlawful to discriminate against a person because of his/her age with respect to any term, condition, or privilege of employment, including hiring, firing, promotion, layoff, compensation, benefits, and training. The ADEA also protects against retaliation against an individual for opposing employment practices that discriminate based on age or for filing an age discrimination charge, testifying, or participating in any way in an investigation, proceeding, or litigation.

3

An employer may ask an employee to waive his/her rights or claims under the ADEA either in the settlement of an ADEA administrative or court claim or in connection with an exit incentive program or other employment termination program. The ADEA, as amended by OWBPA, sets out specific minimum standards that must be met in order for a waiver to be considered knowing and voluntary and, therefore, valid. Among other requirements, a valid ADEA waiver must be in writing and be understandable, specifically refer to ADEA rights or claims, not waive rights or claims that may arise in the future, be in exchange for valuable consideration, advise the individual in writing to consult an attorney before signing the waiver and provide the individual at least 21 days to consider the agreement and at least seven days to revoke the agreement after signing it.
How does the ADEA Act of 1967 apply to situation B?
In situation B, employee B was denied a promotion because of age. Employee B showed that she had the ability to perform the job needed above the expectations of the company. The promotion was given to another employee who obviously did not perform as well as employee B. This clearly is discrimination based on age and clearly violates the ADEA Act of 1967. If the company had given the promotion to a younger person and stated that it was because of performance rather than age, the employee would have had to prove that is was based on age.
The ADEA Act of 1967 protects persons over the age of 40 from these types of acts and gives a means of recourse to employees without the fear of retaliation. The facts state that employee B was denied the promotion therefore she has legal recourse against the company.

Situation C
Relevant Facts Regarding Situation C: * Applicant C requires the use of a wheelchair to move about due to paralysis of both legs. * Applicant C applied for a position that requires movement about the entire company offices, including using the elevator to access any of the seven floors. * In order for Applicant C to make use of the elevators, the key pads in two of the four elevator cars would have to be lowered four inches to be accessible. * Applicant C was denied employment, and was told the denial was because his/her employment would cause undue hardship on Company X.

4

How does the ADA apply?
The ADA is a federal civil rights law designed to prevent discrimination and enable individuals with disabilities to participate fully in all aspects of society. The ADA applies to a person who has a physical or mental impairment that substantially limits one or more major life activities, a person with a record of a substantially limiting impairment, a person who is regarded (or treated by an employer) as if s/he has a substantially limiting impairment, or a person who is qualified for the job s/he has or wants.
Employers covered by the ADA have to make sure that people with disabilities have an equal opportunity to apply for jobs and to work in jobs for which they are qualified, have an equal opportunity to be promoted once they are working, have equal access to benefits and privileges of employment that are offered to other employees, such as employer-provided health insurance or training and are not harassed because of their disability.
Employers must provide a reasonable accommodation if a person with a disability needs one in order to apply for a job, perform a job, or enjoy benefits equal to those offered to other employees. Employers do not have to provide any accommodation that would pose an undue hardship. Undue hardship means that providing the reasonable accommodation would result in significant difficulty or expense.
How does the ADA Act apply to situation C?
The ADA Act states that employers may not discriminate against people with disabilities and that they must provide reasonable accommodations if a person with a disability applies and is hired to perform a job. If Applicant C is qualified for the job and is the best candidate for the job then Company X must make the accommodations needed for the applicant. In this case, moving elevator keypads is not an expense that would cause undue hardship to the company. If the candidate is qualified for the position and hiring the candidate would benefit the company, then spending the money to move keypads in an elevator is a small price to pay for what the disabled candidate could bring to the company. When Company X denied the candidates employment and stated that the reason was the accommodations that would have to be made caused undue hardship, they clearly violated that ADA Act. When the company denied employment and stated the reason, this gave the applicant legal recourse against the company. If the company had stated that there was a more qualified applicant, then not hiring the applicant would have been ok.